A recent decision from the Office of Administrative Hearings (OAH) highlights that where California Children’s Services (CCS) is providing services required by a student’s individualized educational program (IEP), CCS staff must consult with the school district and participate in the IEP process prior to making changes to the services it provides to the student.

CCS is a state and county program administered by the state Department of Health Care Services that provides medically-necessary benefits to certain eligible children. In California Children’s Services (2012) OAH Case No. 2011060589, CCS provided occupational therapy (OT) and physical therapy (PT) services to a severely-disabled student with cerebral palsy, as required by his IEP. The student needed OT and PT services for both educational and medical reasons. For example, he required assistance in sitting upright and holding his head up to enable him to breathe properly, but also to allow him to see and hear his teachers and to use a computer at school. Moreover, there was substantial overlap in his need for assistance for his mobility, toileting, and feeding needs. Finally, the OT and PT helped alleviate constant leg and back pain, which impaired the student’s ability to focus in class, caused him to miss school, and prevented him from doing many functions of daily life.

After conducting a review of the student’s medically-necessary services, CCS unilaterally reduced the student’s OT and PT services to just a fraction of the amount that student’s IEP team determined he should receive in his IEP. Although CCS notified the school district about the reduction, it did not consult with the school district or parents beforehand.

The student argued that CCS’s actions denied him the free appropriate education (FAPE) to which he was entitled under the Individuals with Disabilities Education Act (IDEA). CCS argued that because it was providing only medically-necessary services, it was not obligated to follow the laws related to IEPs and was in no way responsible for the student’s education. In finding in favor of the student, OAH made important clarifications regarding the role of CCS as part of a student’s IEP team and its duty to provide the services required by the student’s IEP.

Under the IDEA, special education students must receive a FAPE, which consists of special education and related services (known as “designated instruction and services” in California). (20 U.S.C. § 1401(a)(9); Ed. Code § 56363(a).) Related services include a variety of services that assist a child with a disability in benefiting from their education, such as OT and PT. (20 U.S.C. § 1401(a)(26); Ed. Code § 56363.)

Under state law, both school districts and other local agencies, like CCS, may be responsible for providing related services to students. (See Gov. Code § 7570.) Specifically, CCS must provide eligible students with “medically necessary occupational therapy and physical therapy, . . . by reason of medical diagnosis and when contained in the child’s individualized education program.” (Gov. Code § 7575(a)(1).) In California, a state agency that provides related services as part of a student’s IEP must participate in the IEP process. (SeeGov. Code § 7572(b), (c)(1), (d).) CCS specifically is required to participate in the IEP team and develop the student’s IEP. (Cal. Code Regs., tit. 2, § 60325(b).)

In California Children’s Services, CCS argued that it was not responsible for providing the student with OT or PT services once it had decided that the student no longer needed the services for medical reasons. However, OAH ruled that when related services are a part of the student’s educational program, including medically-necessary services, CCS is not permitted to make unilateral changes to the student’s services. In highlighting the importance for CCS to take part in the IEP meeting process prior to changing the level of CCS-offered services, OAH agreed with evidence introduced at hearing that the terminated services led to physical problems that further impacted student’s access to his educational program.

Furthermore, OAH ruled in California Children’s Services that when a dispute arises about the services included in a student’s IEP, CCS along with the school district must fulfill its “stay put” responsibilities. This means that if there is a disagreement about the amount of services a student should receive, the school district and local agency must continue to provide the student with the same level of services that he or she received before the disagreement arose, while the parties attempt to resolve the dispute. (20 U.S.C. § 1412(a)(12)(B), 1415(j).)

Because OAH found that CCS was responsible to provide the OT and PT services listed on the student’s IEP, CCS was also responsible for providing a part of the student’s educational program. OAH found that CCS violated special education laws by failing to have CCS therapists attend the student’s IEP meeting and participate in the IEP process. CCS’s decision to reduce services, failure to seek and obtain the parents’ consent for reducing services, failure to participate in the IEP process, and failure to comply with the law denied the student his free appropriate public education. Due to the reduction in services, the student suffered a material educational loss in the form of missed days at school and the inability to focus or to maneuver while at school due to his pain. As a result, CCS was ordered to comply with procedural laws relating to IEPs, immediately participate in the IEP process and have its therapists attend IEP meetings, restore the student’s services, provide compensatory education for the regression suffered by student, and otherwise cooperate with the IEP team.

In this instance, the school district was not involved in the hearing because it had previously entered into a settlement agreement with the student. However, the judge indicated that school districts are ultimately responsible to ensure that students continue to receive the services they need, regardless of which agency is providing them. Thus, school districts must be aware of their responsibilities in regards to services provided by CCS, to ensure that CCS is involved in the IEP process, and ensure that CCS services continue to be provided in the event of a dispute.

If you have any questions regarding this decision, or its legal implications, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The United States Court of Appeals for the Ninth Circuit recently ruled that under current federal law, teachers who are not yet fully certificated, but who are on their way to obtaining certification through “alternative routes,” are highly qualified under the No Child Left Behind Act (NCLB). (See Lozano Smith Client News Brief No. 1 (Jan. 2011).)

In Renee v. Duncan (May 10, 2012) __ F.3d __ (2012 WL 1624772), a group of California school children, their parents, and two non-profit organizations challenged a federal statute that allows teacher trainees who are participating in alternative-route teacher training programs, but who have not yet obtained their state certification, to be deemed highly qualified under the NCLB. Appellants contended that the statute allows a disproportionate number of intern teachers to teach in minority and low-income schools. The statute in dispute defines “highly qualified teacher” as meeting the requirements of federal regulation 34 C.F.R. 200.56(a)(2)(ii), which was adopted pursuant to the NCLB. That regulation specifies that a teacher trainee taking the “alternative route” path must: (1) receive high-quality professional development; (2) participate in a program of intensive supervision; (3) assume functions as a teacher for a specified period of time not to exceed three years; and (4) demonstrate satisfactory progress towards full certification. Thus, the federal statute expands the definition of “highly qualified teacher” to include those teachers taking an “alternative route” to certification.

The court held that the challenged statute is consistent with the NCLB. The court further validated the statute’s definition of “highly qualified teacher” as including teacher trainees who are demonstrating satisfactory progress towards full certification through an “alternative route.” While neither the NCLB nor its related regulations define “alternative routes to certification,” the term generally refers to nontraditional training programs that are often designed to address teacher shortages in specific subjects or geographic areas. “Alternative route” candidates usually have work experience or hold at least a bachelor’s degree in a field other than education. The Renee court listed Teach for America and Troops to Teachers as examples of alternative route programs.

The challenged statute is set to expire at the end of the 2012-2013 school year, so unless it is extended, teachers taking “alternative routes” to certification will have to achieve full certification, as opposed to merely demonstrating satisfactory progress towards certification, in order to be highly qualified under the NCLB.

If you have any questions regarding this decision or any other NCLB requirements, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The Ninth Circuit Court of Appeals recently issued a decision holding that the admissions criteria of a magnet charter school was not unreasonable and did not violate the Americans with Disabilities Act (ADA), or Section 504 of the Rehabilitation Act (“Section 504”). (Oman v. Portland Pub. Schs. (9th Cir. May 14, 2012) __ F.3d __ (2012 WL 1662625).) The court also held that the Individuals with Disabilities Education Act (IDEA) does not provide a private cause of action for nominal damages.

A parent sued a school district when her eighth-grade student with disabilities, who could only write at a third-grade level, was denied enrollment in a magnet school. The parent alleged that the admissions policies for the district’s magnet high schools, and specifically the minimum entry requirements and their review of applications based primarily upon grades, violated the ADA and Section 504. The parent contended that, while the admissions criteria were facially neutral, the admissions standards discriminated against disabled students by excluding some students who did not meet the admissions standards due to their disabilities.

The court held that the magnet school’s policy of requiring students to meet eighth grade benchmarks was not unreasonable and did not violate the ADA or Section 504, stating that it would give judicial deference to an educational institution’s academic decisions in ADA and Section 504 cases. The court concluded that Congress explicitly contemplated that magnet programs would be created by school districts, and that many had competitive admissions policies, some of which are more stringent than those at issue in this case. Finally, the court reasoned that it was unaware of any regulation adopted pursuant to Section 504, the ADA, or the IDEA which would prohibit having competitive admissions policies. Therefore, magnet schools may have competitive admissions policies without violating federal disabilities laws.

A lower court had also awarded the parent nominal damages in the amount of $1 because the district had discouraged the parent from enforcing special education legal protections. The Ninth Circuit held that no damages, nominal or otherwise, are available under the IDEA. Thus, it was improper, and legally impermissible, for the lower court to award nominal damages under the IDEA.

This decision is important for school districts because it establishes that magnet schools may maintain neutral admissions criteria, even if those criteria adversely affect students with disabilities who are unable to meet those criteria.

If you have any questions regarding this decision or its legal implications, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

With the ongoing uncertainty of state funding, school districts are forced to continue exploring local funding options to address funding shortfalls. A parcel tax is an attractive option because a school district can use parcel taxes for any purpose identified in the ballot measure, including operating expenses. As a result, a parcel tax can be a significant source of unrestricted general fund dollars to support any district programs and needs.

In 2011, 18 of 27 (67%) of school district parcel tax measures were successful. While successful passage of a parcel tax measure takes due diligence and planning, there is still time to pursue a parcel tax election this year. The deadline to place a parcel tax measure on the November 6, 2012 election is August 10, 2012.

In considering whether to pursue a parcel tax, here are some things to keep in mind:

1. The governing board of a school district must hold a noticed public hearing before calling the election. The resolution calling the election on the parcel tax measure need only be approved by a simple majority of the governing board. The resolution must be adopted and delivered to the County Registrar of Voters at least 88 days before the election date.

2. The parcel tax measure must receive a 2/3-voter approval at the election.

3. Any parcel taxes levied for the benefit of a school district would be levied on each taxable parcel of real property within the boundaries of the school district, regardless of whether the owner of the parcel owns 1 parcel or 100 parcels.

4. There is no present limit to the duration of a parcel tax. Although special taxes for school districts previously were thought to be limited to 4-year terms (due to the limit on voter-approved changes in a school district’s appropriation limit), more recently it has been determined that school districts do not need voter approval for changes in their appropriation limit and so the 4-year limit does not apply.

5. A school district is permitted, but not required, to exempt senior citizens, or persons receiving Supplemental Security Income (SSI) for a disability, regardless of age, or both, from any parcel tax (senior citizens being defined as taxpayers 65 years of age or older).

6. In practice, the rates at which parcel taxes may be levied fall into one of two categories. The first category is a flat rate that is applied to all taxable parcels within a school district. Under this methodology, each taxable parcel within the school district would pay, for example, $100 per year per parcel. As an alternative, some school districts have adopted rates that vary for different land uses, i.e., separate rates for residential, commercial, and industrial properties, and even rates that vary within these classes by size of parcel or size or number of buildings on the parcel. In any case, rates cannot be based directly on the value of the parcel, and like-parcels must be charged like-amounts to meet the law’s “uniformity” requirement.

7. The measure may include an automatic inflationary adjustment, usually tied to one of the Consumer Price Indices, to provide some growth in the parcel tax revenue over the life of the tax. In the absence of a CPI adjustment, the revenue growth will be limited to the creation of new assessor’s parcels within the school district.

8. The parcel taxes must be levied and collected by the county’s auditor and tax collector along with the regular property taxes, and the county may charge the school district a fee for this service.

9. A new parcel tax becomes effective after a successful election and generally at the beginning of the next fiscal year, e.g., July 1, 2013 for a November 2012 election, and the proceeds will be distributed to a school district at the same time it receives its share of regular property tax revenues from the county.

10. Although not required for a parcel tax, a school district may include the appointment of an independent citizens’ oversight committee (similar to that required for Proposition 39 bond measures) as an additional accountability feature of the tax measure, which can increase voter support for the measure.

11. Currently, the law is unsettled as to whether taxpayers may deduct parcel tax payments for federal and state income tax purposes. As a result, school districts should be extremely cautious in making any affirmative statements about the deductibility of parcel tax payments.

If you have questions regarding parcel taxes, general obligation bonds, certificates of participation, Mello Roos, or other financing issues, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Supreme Court recently issued the decision Brinker Restaurant Corporation v. Superior Court (2012) ___ S.Ct. ___ (2012 WL 1216356) clarifying an employer’s duty to provide non-exempt employees meal and rest periods and reminding employers to record and keep those wage and hour records. The Brinker decision offers welcome relief to private sector employers that must comply with state meal and rest period requirements. Public agencies have traditionally been exempt from these requirements. As a result, the break standards established in Brinker have limited impact in the public sector.

For the better part of a century, California law has guaranteed to employees wage and hour protection, including meal and rest periods. In 2000, however, both the Legislature and the Industrial Welfare Commission (IWC) adopted for the first time monetary remedies for the denial of meal and rest breaks. (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094.) These remedies engendered a wave of wage and hour class action litigation, including the instant suit in which hourly nonexempt employees sued their employer, Brinker Restaurant Corporation and their affiliates (“Brinker”).

Brinker owns and operates restaurants throughout California, including Chili’s Grill & Bar and Romano’s Macaroni Grill. The lawsuit brought by Brinker’s employees alleged that Brinker failed to provide mandatory rest and meal breaks, failed to pay premium wages in lieu of those rest or meal breaks, required employees to work off-the-clock during meal periods and unlawfully altered employee time records to misreport the amount of time worked and break time taken.

The California Supreme Court held that an employer’s obligation is to relieve its employee of all duties during meal or rest periods, with the employee thereafter at liberty to use the meal or rest period for whatever purpose he or she desires, but the employer need not ensure that employees take such breaks.

Rest Periods

The Brinker decision sets forth the following standards for employee rest periods:

No break for shifts less than 3.5 hours;

One 10 minute break for shifts between 3.5 and 6 hours;

Two 10 minute breaks for shifts of more than 6 hours and up to 10 hours; and

Three 10 minute breaks for shifts of more than 10 hours and up to 14 hours.

While rest breaks should generally be taken before and after a meal break, the court held that sequence is not required if not practical.

Meal Periods

Regarding meal periods, Brinker holds that an employer need only provide an uninterrupted 30-minute break free from work, and it must not impede or discourage employees from taking such a break. The employer is not obligated, however, to police meal breaks and ensure no work is performed. As to timing requirements, the Brinker decision provides that:

A first meal period must occur after no more than 5 hours of work;

A second meal period must occur after no more than 10 hours of work; and

There is no penalty if an employee works 5 consecutive hours without a meal period.

Class Action Certification

While Brinker is a seminal wage and hour case, it also gained notoriety in class action circles for the way in which the classes were certified. The court ruled that a party advocating for class treatment must demonstrate the existence of a well-defined community of interest such as an employer’s policy, rather than individual questions that require proof of violations on an employee-by-employee basis, such as allegations of altered time records.

Public Agency Employers

In Johnson v. Arvin-Edison Water Storage District(2009) 174 Cal.App.4th 729, the California Court of Appeal of the Fifth Appellate District held that a water district did not have to comply with the Labor Code and related IWC Orders regarding employee meal periods and overtime provisions because of its status as a public entity. Although Johnson, unlike Brinker, did not deal with rest periods specifically, there is a general consensus that public entities need not comply with the Labor Code and IWC Orders regarding rest periods either.

However, if your public agency employs commercial vehicle drivers, meal and rest break requirements will apply to them. (IWC Wage Order No. 9-2001.) Also, the meal and rest period obligations established in Brinker do apply to private schools, including colleges and universities.

Despite the Brinker decision’s limited applicability to public school districts and community college districts, the case provides useful guidance regarding duty free meal and rest periods afforded to public agency employees. Employers are advised to review their meal and rest break policies to ensure they state, at a minimum, that employees are expected to take rest breaks and meal periods. In addition, employers should confirm that managers understand the number of breaks that must be provided, the duty to properly document when breaks are taken, and the risk of engaging in conduct that undermines or prevents employees from taking breaks.

If you have any questions about this decision, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The Reporting by School Employees of Improper Governmental Activities Act (the “Reporting Act”) protects school employees and other persons from retaliation for disclosing improper governmental activities. (Ed. Code §§ 44110-44114.) In the recent decision Hartnett v. Crosier (Apr. 26, 2012) __ Cal.App.4th __, 2012 WL 1434900, the California Court of Appeal applied and explained the Reporting Act in a case involving a claim by one management employee against several other management employees.

Plaintiff Rodger Hartnett was a former claims coordinator employed in the Risk Management Department of the San Diego County Office of Education (“Education Office”). Hartnett alleged that, during his employment, he disclosed that several Education Office employees had referred the Education Office’s legal business to friends and family members in exchange for gifts, gratuities, discounted legal services, and other considerations. The Education Office later discharged Hartnett for incompetency, insubordination, and dishonesty, but Hartnett claimed that his discharge was in retaliation for disclosing the improper government activities.

Hartnett sued the defendants, his former Education Office colleagues, alleging that they retaliated against him in violation of section 44113, subdivision (a), of the Reporting Act and seeking punitive damages and attorneys fees under section 44114, subdivision (c), of the Act. Hartnett lost at the trial court level. On appeal, the court held that Hartnett was protected from retaliation under section 44113 of the Reporting Act, but that he was not entitled to punitive damages and attorney fees under section 44114.

Section 44113, subdivision (a), prohibits “an employee” from using his or her official position to retaliate against “any person” to deter the person from making a disclosure protected by the Act. Hartnett clearly qualified as a “person” under a definition given in the Reporting Act. (Ed. Code § 44112(d).) However, the defendants claimed that section 44113, subdivision (a), did not apply to them because they were not “employees.” Under section 44113, subdivision (a), an employee is a “public school employee” as defined in the Educational Employment Relations Act (Gov. Code § 3540.1(j)). The EERA defines a “public school employee” as a “person employed by a public school employer except persons elected by popular vote, persons appointed by the Governor of this state, management employees, and confidential employees.” The EERA defines a “management employee” as an employee with “significant responsibilities for formulating district policies or administering district programs.” (Gov. Code § 3540.1(g).)

Relying upon a recent case, Conn v. Western Placer Unified School District (2010) 186 Cal.App.4th 1163, the court held that section 44113 will prohibit management employees from taking retaliatory action if they were acting in a supervisory capacity when engaged in the alleged retaliation. The court justified its holding on the basis that supervisory employees are not excluded from the EERA’s definition of a “public school employee” (Gov. Code § 3540.1(m)), and that the defendants’ interpretation of section 44113 “would exempt from liability those most likely and able to retaliate against public school employees making protected disclosures.”

Notwithstanding the court’s holding that Hartnett could sue Education Office management employees under section 44113 of the Reporting Act, the Court also determined that he could not seek punitive damages and attorney fees in a lawsuit under the Act.

Section 44114, subdivision (c), imposes liability for punitive damages and attorneys fees on a person who intentionally retaliates against a “public school employee” for making a protected disclosure. Because Hartnett was a management employee (who is excluded from the EERA’s definition of a “public school employee”) when subjected to the alleged retaliation, the court held that Hartnett could not seek punitive damages or attorney fees under section 44114, subdivision (c).

As a result of the Hartnett decision, school districts should be aware that management employees are not exempt from liability under the Reporting Act when they are act in a supervisory capacity. We recommend that school districts confer with legal counsel during any evaluation of retaliation claims under the Reporting Act.

If you have any questions about this decision, please feel free to contact one of our eight offices located statewide. You can also visit our website or follow Lozano Smith on Facebook.

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Firm Continues to Strengthen its Northern California Presence and Public Agency Expertise

Fresno, CA (May 22, 2012) – Lozano Smith is pleased to announce that it has added Steve Ngo as a new attorney to its Santa Rosa office.

Mr. Ngo has joined the firm as Senior Counsel and will provide a full range of legal advice and services to California’s K-12 and community college districts, universities, and cities, counties, and special districts. He is a skilled litigator with a broad range of experience, representing clients in state and federal courts, as well as in mediation and arbitration proceedings. Mr. Ngo received his Juris Doctor from UC Hastings College of the Law. He has a Master of Public Policy from Georgetown University and Bachelor of Arts, Political Science, from UCLA.

“Steve is an incredible addition to our firm with his passion for public agencies,” said Andy Garcia, Executive Director of Lozano Smith. “His significant expertise will prove to be invaluable for our clients and their desire to be successful in every endeavor.”

About the Lozano Smith
Established in 1988, Lozano Smith is a full-service education and public agency law firm serving hundreds of California’s K-12 and community college districts, universities, and numerous cities, counties, and special districts. The firm’s expertise includes personnel matters, labor relations, real property and construction matters, constitutional issues, special education, student discipline, school funding, charter schools, bond elections, governance and litigation in all areas of representation. Lozano Smith has offices in Fresno, Los Angeles, Monterey, Sacramento, Santa Rosa, Redding, San Diego and Walnut Creek. For more information about Lozano Smith or to see full attorney bios, visit http://www.LozanoSmith.com or find us on Facebook at http://www.facebook.com/LozanoSmith.